This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-2517

Edina Realty, Inc.,

Respondent,

vs.

Belgarde Enterprises,

d/b/a The Cliffs at Ridgedale,

Appellant.

Filed July 8, 1997

Reversed and remanded

Crippen, Judge

Hennepin County District Court

File No. 9615050

Stanford P. Hill, Jeffer Ali, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondent)

Neil Polstein, Bale, Anderson, Polstein, Pearson & Hill, Ltd., Suite 400, 607 Marquette Avenue, Minneapolis, MN 55402-1796 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Schultz, Judge.[*]

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Examining the effort of appellant Belgrade Enterprises to remove this case to district court for redetermination following a conciliation court judgment, the trial court determined that appellant failed to file its demand for removal within the 20-day time period provided in Minn. R. Gen. Pract. 521(b). Appellant also disputes the trial court's failure to consider appellant's motion to vacate the judgment pursuant to Minn. R. Civ. P. 60.02; the trial court declared that it lacked jurisdiction over the action in the absence of a properly filed demand for removal. We reverse and remand.

FACTS

Respondent Edina Realty sued appellant in conciliation court to recover unpaid commissions for tenant referrals. In a notice of judgment dated and mailed April 2, 1996, the conciliation court stated its award to respondent of approximately $7,000. Appellant instructed its counsel to remove the case to district court for a trial de novo pursuant to Minn. R. Gen. Pract. 521. Appellant furnished affidavits to show that demand for removal was sent to respondent's counsel and the court administrator on April 9, 16 days before the filing deadline of April 25.[1] Respondent's counsel admits receiving its copy, but the court administrator has no record of receiving the original.

Both parties assumed that the court administrator was processing the demand for removal until respondent contacted the administrator in September 1996 and was told that no demand had been filed. Appellant then filed a motion with the trial court, seeking an order to process its demand for removal as timely, or in the alternative, to vacate the conciliation court judgment pursuant Minn. R. Civ. P. 60.02(a).[2] The court denied appellant's motion, reasoning that the demand for removal "was never filed" as a matter of undisputed fact and that the court lacked jurisdiction over the case.

D E C I S I O N

We review questions of civil procedure de novo. Wilkins v. City of Glencoe, 479 N.W.2d 430, 431 (Minn. App. 1992). The rules of civil procedure govern the removal of conciliation court decisions to district court. Id.

1. Jurisdiction

The trial court apparently refused to consider appellant's rule 60.02 motion based on its assessment that it lacked jurisdiction over the case, citing Blixt v. Civil Serv. Bd., 297 Minn. 504, 210 N.W.2d 230, 231-32 (Minn. 1973) (affirming trial court's dismissal of petitioner's request for review of a civil service board order where petitioner filed its request after the statutory deadline and trial court held that it lacked jurisdiction). But Blixt did not involve a request for relief pursuant to rule 60.02.

Since the trial court issued its order, the Minnesota Supreme Court held that the 20-day limitation for requesting a trial de novo under Minn. R. Gen. Pract. 114.09 does not foreclose the vacation of a judgment under rule 60.02. Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn. 1997). In Nguyen, the defendant received an adverse ruling from an arbitrator in a non-binding pretrial arbitration held pursuant to Minn. R. Gen. Pract. 114.01. Nguyen, 558 N.W.2d at 488. Defendant's counsel served a request for a trial de novo on opposing counsel, but, due to clerical error,[3] neglected to file the original request with the trial court. Id. Both parties proceeded under the assumption that there would be a trial until the failure to file was discovered and judgment was entered against defendant. Id. Defendant sought relief from the trial court pursuant to rule 60.02, but the court denied the motion, holding that rule 114.09 did not afford it discretion to vacate under rule 60.02. Id. The supreme court reversed, holding that the trial court had authority to vacate the judgment under rule 60.02. Id. at 490. The court reasoned that when rule 114.09 was adopted, parties were able to obtain relief from an arbitration award under rule 60.02. Id. at 489-90. The court also concluded that limitations on vacation of judgment under rule 114.09 were not intended to foreclose relief that was previously available under rule 60.02. Id. at 490. Any other interpretation, the court stressed, would be inconsistent with the "well-established practice of granting liberal relief when an innocent party would otherwise be prejudiced by his attorney's neglect." Id.

Concluding that Nguyen governs the circumstances in this case, we remand for the trial court to determine whether appellant has satisfied the four prong test for rule 60.02 relief set forth in Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964). Defendants should be relieved from the consequences of their attorney's neglect where they (a) possess a reasonable defense on the merits, (b) have a reasonable excuse for their neglect, (c) acted with due diligence after entry of judgment, and (d) show that no substantial prejudice will result to the other party. Id., 128 N.W.2d at 750.

In this case, appellant asserts (a) that affidavits it submitted to the trial court show it has a reasonable defense, (b) it has a reasonable excuse for its neglect--it mailed the demand in a timely fashion, (c) it acted with due diligence by filing its motion to vacate within one month of discovering its demand was not received by the court administrator, and (d) no prejudice is evident or has been shown regarding respondent.

2. Timeliness of Filing

Minn. R. Gen. Pract. 521 permits service of the notice of removal by mail on opposing counsel, but the rule does not specify the manner of filing with the court administrator. Because the equities of the case can be determined under rule 60.02, we decline to review the determination that appellant failed to file its demand for removal as provided by the rule.

Reversed and remanded.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 A 20-day time period for removing the case to district court is measured from the mailing of the notice of judgment, and the law requires that an additional three days be added to the time period when the notice of judgment is served by mail. Wilkins v. City of Glencoe, 479 N.W.2d 430, 431 (Minn. App. 1992) (construing Minn. R. Civ. P. 6.05). The affidavits state that appellant included a check for the appropriate filing fee and proof of service with its mailing to the court administrator.

[ ]2 Minn. R. Civ. P. 60.02(a), (f) allows a court "upon such terms as are just" to "relieve a party or the party's legal representatives from a final judgment" that resulted from "[m]istake, inadvertence, surprise, or excusable neglect" or for "[a]ny other reason justifying relief from the operation of the judgment."

[ ]3 Defendant's counsel stated he instructed a legal assistant to file the request but that the "legal assistant failed to file [it] with the court." Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 491 (Minn. 1997).